The legal status of judges and guarantees of their independence

The second sentence of clause 146 of the Constitution provides for the following: “The courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws.” The independence of judges is guaranteed, in particular, by providing the procedure for the appointment and release from office of judges, remuneration and restrictions on activities of judges and special conditions of status in service by law.

A judge is appointed to office for life. Judges are appointed to and released from office by the President of the Republic on the proposal of the Supreme Court. The Chief Justice of the Supreme Court is appointed to office by the Riigikogu, on the proposal of the President of the Republic. Justices of the Supreme Court are appointed to office by the Riigikogu, on the proposal of the Chief Justice of the Supreme Court.

An Estonian citizen who is of high moral character, who is suitable for the office of judge and has completed a higher education in law at the University of Tartu, or a higher education in law which is equivalent to that acquired at the University of Tartu, and who has passed a judge's examination may be appointed as a judge. A person who has been convicted of an intentionally committed criminal offence or who has been made redundant, removed or expelled from the position of judge, lecturer of law with a research degree of an Estonian institution of higher education, sworn advocate, prosecutor, the Legal Chancellor or any other position which requires high qualification in law shall not be a judge. Employment in the above-mentioned positions may be deemed equal to employment in the position of judge and a person who has been employed in such position may be exempted from taking the judge’s examination.

If a judge has the right to access state secrets by virtue of office, the candidate for judicial office shall pass a security check pursuant to the procedure provided for in the Surveillance Act. Obtaining a permit for access to state secrets may be hindered, among other things, by ideological or cultural involvement with an organisation which by its activities ignores public policy or the purpose of which is to change the public order by force, dependency on narcotic drugs or alcohol and addictive pursuits which bring about the candidate’s dependency. Security checks are performed by the Security Police, which submit the materials collected in the course of the security check, together with the opinion of the Security Police, to the Supreme Court. The Supreme Court then decides on the basis of the material whether or not to propose the appointment to office of the candidate.

Pursuant to the Status of Judges Act, judges shall not be employed elsewhere outside of the office of judge, except for the purposes of teaching or scientific research. Nor shall judges be members of the Riigikogu or representative bodies of local governments, members of political parties or founders or members of management boards of public limited companies or private limited companies.

Administrative or criminal proceedings may be brought against a person for influencing judges or lay judges. The independence of judges is also guaranteed by the confidentiality of deliberations upon making a judgment where a case is heard collegially. It is further established by procedural law, by the court’s authority to fine or order the detention of any person who violates order in court or disturbs the hearing of a case, and by the right of the court to fine any person who expresses contempt of court. Pursuant to the Constitution, a majority vote of the members of the Riigikogu is required in order to pass or amend Acts concerning courts administration or judicial proceedings. This latter provision is also significant from the point of view of ensuring the independence of administration of justice and judges and the stability of corresponding legal regulation.

A judges’ disciplinary chamber operates at the Supreme Court for the adjudication of cases relating to the disciplinary liability of judges. Members of the chamber are elected for a term of three years from amongst the judges of all three instances of court. The Chief Justice of the Supreme Court has the right to commence disciplinary proceedings against all Estonian judges and the Minister of Justice has the right to commence disciplinary proceedings against judges of courts of first instance and courts of appeal.

Judges may be removed from office only by a court judgment. However, in certain instances specified in the Status of Judges Act, the Riigikogu or the President of the Republic may release a judge from office on the proposal of the Chief Justice of the Supreme Court  for example, on the grounds of: unsuitability for office (this can only occur within the first three years following appointment to office); health reasons which hinder employment as a judge; a reduction in the number of judges; or age (in cases where the judge is still in office five years after reaching retirement age).

Criminal charges may be brought against a judge and a judge may be taken into custody during his or her term of office only on the proposal of the Supreme Court, and with the consent of the President of the Republic. Criminal charges may be brought against the Chief Justice and justices of the Supreme Court and the Chief Justice and justices of the Supreme Court may be taken into custody only on the proposal of the Legal Chancellor, and with the consent of the majority of the membership of the Riigikogu. Detention or compelled attendance may be imposed on a judge during the term of his or her authority, with the permission of the Supreme Court. Detention, search, seizure, seizure of property, inspection and examination may be imposed on the Chief Justice or a member of the Supreme Court during the term of his or her authority only after the Riigikogu has consented to bringing criminal charges against him or her.

Criminal charges may be brought against a lay judge or a lay judge may be taken into custody during the term of his or her authority and detention or compelled attendance may be imposed on him or her only if consent thereto has been granted by the representative body of the local government which elected the lay judge.